This article is written in answer to the following questions, for which
purpose it is divided into two readings: (a) the fiqhi rulings relating to
reciting the Fatiha as a Shafi'i Ma'mum [follower] behind an Imam in an
audible [Jahriyya] as opposed to an inaudible [Sirriyya] prayer; and (b) a
historical and doctrinal explanation for the Qawl Qadim [First Position] as
opposed to the Qawl Jadid [New Position] of the Imam al-Mujtahid al-Shafi'i
(may Allah be well pleased with him!) as understood and accepted by the
Shafi'i school, after which this article is named: Tahqiq Qira'at al-Fatiha
min Tabyin Aqwal al-Qadima.

Allahumma hidayatan li-s-sawab!

“Dear Respected Teachers,
I sent this question to the Shafi'i Fiqh
forum and I also wanted to send it [to] you as well.

I was reading the book Fiqh Al-Imam by the California
based Hanafi teacher, Shaykh Abdur-Rahman ibn Yusuf
which states the following:
"Imam Shafi'i's popular view is that it is necessary
for the follower to recite Surat al-Fatiha in both
types of prayers - audible as well as silent. This
view, although being the popular one, is not
necessarily his final opinion. A careful study of his
works reveals this opinion to be his former view, as
Ibn Qudama states in his book al-Mughni (1:601). The
words of Imam Shafi'i, as relayed in his book Al-Umm,
inform us that it is not necessary for the muqtadi to
recite Surat al-Fatiha in the audible prayers;
however, it should be recited in the silent prayers.
He writes:
'And we say that the follower recite in every prayer
performed behind an imam, in which the imam recites in
a non-audible tone' (Kitab al-Umm 7:153 U) " p 66 of
Fiqh Al-Imam.
Here are my questions. It seems that this is not the
current position of the Shafi'i madhab (from such
books as the Reliance and Al-Maqasid) and it appears
that this is one of the cases where the fatwa lies
upon Imam Shafi'i's earlier position.
1. Shaykh Gibril Haddad writes in his book on the
Four Imams, "What is presently known as the Shafi'i
position refers to the New except in approximately
twenty-two questions, in which Shafi'i scholars and
muftis have retained the Old" (p 189) Can you
highlight or mention what these twenty-two questions
are?
2. How does one recite behind the imam in an audible
prayer? Is it better to recite at the same time that
the imam is reciting or wait for him to completely
finish the Fatiha (and then recite) ? Should the
imam pause between the fatiha and the second surah to
give the follower a chance to recite?
3. Is this position of Imam Shafi'i (as mentioned in
Al-Umm) a strong position within the madhab or is it
considered a weak position?
Thank you for taking the time to read this question.”

I. As to the First Reading:

The Qawl Mu'tamad [Relied Upon Position] and the final word (to which there
can be no adoptable alternative position in this issue; found variously in
our books as: shadh, wahin and quwa'il-not just weak but very weak, which
means that to follow this is to go beyond the standard of the Madhhab) as
far as the Shafi'is are concerned, with respect to the recitation of the
Fatiha in a jama'a [group] prayer, is that it is well known that it is
Wajib or Obligatory for the Ma'mum or the follower of the Imam in either
the inaudible or the audible prayers to recite his or her Fatiha, in every
rak'a [cycle of prayer], since this is a part of the Rukn and integral to
the Ma'mum's prayer. In the audible prayers, it is Mandub [recommended] for
the Imam to have a pause [sakta] after reciting his Fatiha aloud, long
enough for the Ma'mum to recite his Fatiha.

However, before going into the details of the above simple and
straightforward fiqhi one-line answer to your question, namely how should
one practically recite behind the Imam, that is to say, its kayfiyya
[procedure], I would like to take the opportunity here to address a number
of general concerns relating to the background of your question,
particularly in relation to what I had read of your narration of what the
Hanafi author wrote on behalf of our Madhhab. Those who want to go straight
to the fiqhi material should skip the following eight paragraphs.

As a matter of rule, common sense and adab, one should not rely on
particular fiqhi judgements or opinions given or narrated by scholars who
are not of the same school. This is especially so, in matters of furu',
because the immense detail of the Shari'a is such that a non-specialist
(and even if someone is trained as a Shafi'i or has read one or two Shafi'i
texts but because of one's immense knowledge and training in another school
decides to adopt that other school for one's 'amal, which means that in
effect, that person will have no practical and personal experience of being
even a Shafi'i 'awwamm) will end up getting lost and drowned by the many
conflicting views and opinions that are recorded in our books of Fiqh. It
is for this reason that we need living teachers to guide us through this
great variety of opinions, so we shall not be easily fooled into following
what seems only to our eyes to be 'stronger' evidence or (may Allah save us
from this path!) end up following what is easier than what we should have
done. Another danger for those who do not know the 'ins and outs' of a
particular school, its methods, its rules, its Isnad and transmission and
even its history, is that more often than not they will fail to know where
to begin and what reference work should they rely on in order to come at a
fiqhi ruling set out by the many jurists of that particular school. I
suppose a typical example with regard to the Shafi'i school, and one which
the author of your book has demonstrated, is that one might think it
sufficient to refer back to the work of the founder of the school, Imam
al-Shafi'i himself (among whose monumental works on Fiqh, only al-Umm is
well known and easily available to (but not readable or easily
understandable by) the common man, while some fiqhi works remain either
unedited in manuscript form or have been lost or have been destroyed; and
among these are the Hujja and Imla' Kabir (which is among his Iraqi works,
except for parts of this Imla'), Imla' Saghir, Amali, and the accounts of
his final views, as recorded by his students (the major ones called the
Mabsut:) al-Rabi' al-Muradi and al-Muzani and al-Buwayti and al-Za'farani
(in Iraq); (the minor ones called the Mukhtasar: al-Muzani, al-Buwayti,
Harmala, (may Allah be pleased with all of them and for their spreading the
school!), and his vast collection of Fatwas out of a total of 113 works the
Imam has authored, according to the count of Qadi al-Marwarudhi). It is not
uncommon that we Shafi'is occasionally hear people claiming (in our lands,
for example; Shafi'i lands, no less) to be a Shafi'i on account of having
finished reading al-Umm! (The point here is that one cannot get the full
picture without having access to all of the Imam's known works of the
Jadid, not to mention the unknown ones.) As I am sure the Hanafi author of
your book would understand, like the Hanafis, we too have specific genres
and different types of books written for specific functions: basic [Fard
'Ayn] textbooks for the public, training manuals for would-be jurists,
encyclopaedic references, khilaf literatures, source books on evidence,
works on our methods, and biographical information on our jurists and so
on. Despite its name, al-Umm is certainly the last place and the most
unreliable work to look at in order to find the practiced (and that is what
matters; the 'amal, not the theory) fiqhi rulings of our school.

Instead, as our teachers keep reminding us, it is the later scholars that
update the earlier ones, and for that reason it is only right that we have
to start, as a beginner in the school would, from the works closest to our
time and move backwards in time. It is not an accident of history that
among the most basic Shafi'i training manuals today are the likes of
Hashiyat Fath al-Qarib and the I'anat al-Talibin, works written in the last
century, and the next step up in the curriculum are works written a further
600 years earlier by Imam al-Nawawi (may Allah be pleased with him!), for
example, and so on and so forth until of course, its source and foundation,
such as the (and yet another non-accident of history for which its title is
aptly named:) al-Umm. Therefore, I do hope that you now understand that to
read al-Umm in order to arrive at a hukm shar'i for our school is not too
different from reading the unrefined scriptural proofs or the primary texts
and sources, that is to say, the Qur'an and the Hadith, in order to reach a
legal judgement (which the non-specialists and the non-initiated do not
have any right to do, because of the possible mistakes and
misunderstandings that will be caused). Those who take the short route
(whether unintentionally or with good intentions) without consulting living
teachers and think that 'what they read is what they get' will almost
certainly deprive themselves of the 'behind the scenes' information that is
in most cases not recorded on paper, or rather not recordable. This, as I
said earlier, is due in part to the immense amount of data and
comprehensive detail that our Sacred Law encompasses and has to offer, and
in part to the sophistication of how our fiqh is constructed and is to be
understood (even the lughawi or lexical meaning of 'fiqh' is "al-fahmu mA
daqqa" or 'profound and deep understanding'), for it does not only make use
of scriptural proofs (that which you think you can see) but it takes into
account also of the other, 'non-scriptural' yet also 'canonical' proofs,
namely, Ijma' [consensus] and Qiyas [analogy; including 'aql and
reasoning], guarded and understood by the living representatives.

The same goes for works that fall under 'Ilm Khilaf [comparative fiqh] such
as the work relied upon by the Hanafi author of your book when discussing
this issue, the Mughni of the respected Hanbali jurist, Ibn Qudama. Any
beginners in Fiqh should know that these works cannot be relied upon to
come to a furu' ruling unlike a work of proper Fiqh (and in nearly all
systematic Shafi'i madrasat, students are certainly not allowed to read
such works during the first 3-4 years of their formative education) because
a work on 'Ilm Khilaf is not the place to look for the definitive, reliable
and practiced positions of any school. Instead, it is the simple matn and
the basic textbooks of 'Ilm Fiqh (such as what you already have, the two
works available so far in perfect English, those that should be relied upon
by English-speaking Shafi'is, the Reliance and the Maqasid; and even for
non-Shafi'is when it comes to the Hamish of the former book). Do not be
fooled by their size: although they are condensed textbooks, they will
almost certainly contain the rulings needed by both the scholar and the
public. On the other hand, works on 'Ilm Khilaf are only useful
consolidated reference tools; they are almost always used by scholars of a
particular fiqh school to find the positions of the other schools (as a
general indication), and should not be used by the public as is prevalent
today. In fact, as our teachers used to remind us: works on 'Ilm Khilaf, if
not used appropriately may result in divisive khilaf of the Umma (the
ta'alluq of its name, ma sha' Allah!). Perhaps, it is among the signs of
the fitna of our times that virtually all modern Islamic universities are
offering classes in 'fiqh muqarana' rather than proper Fiqh or the furu',
and not only that, to students who have never been trained or perhaps have
never even read a single short work on 'Ilm Fiqh.

I do not have access to the book you are referring to (i.e., Fiqh al-Imam),
but from what you've written about what the author said I have to point out
that there are a number of worrying inaccuracies in his reading of the
Mughni. I do not think that we will have space to go into the details of
this (lest we go even farther from what you want), but what Ibn Qudama in
fact did was to present the two conflicting opinions of our Imam, the Qawl
Qadim and the Qawl Jadid (without making it known to his readers which one
is which). [Ibn Qudama, Mughni, 2:259-260]. As it is the expected practice
with any good works on 'Ilm Khilaf, Ibn Qudama certainly did not perform
any Tarjih [assessment] in order to judge which one of the two conflicting
qawls of our Imam is in fact the Imam's final position or the stronger one
or the correct one there; for Ibn Qudama knew that he has no right to
perform such a procedure (because he was a Hanbali and not a Shafi'i
specialist). I could not see how your author could have reached a
conclusion which Ibn Qudama did not, based upon reading his source: "A
careful study of his [al-Shafi'i's] works reveals this opinion [i.e., it is
Wajib to recite the Fatiha behind the Imam in every rak'a; namely, the Qawl
Mu'tamad of our school] to be his former view [I understand this as Qawl
Qadim; if this is what the Hanafi author meant, then he is way off the
mark], as Ibn Qudama states in his book al-Mughni." The Hanafi author hoped
to corroborate his 'careful study' (which turns out unfortunately to be
gravely wrong) from a work on 'Ilm Khilaf. What he should have done then
was to look at what Imam al-Nawawi or some other later Shafi'i jurists or
even what the Reliance or the Maqasid had to say regarding this issue in
order to 'corroborate' his findings; isn't a Shafi'i a better spokesperson
for the school than any outsider? Even if it be granted here (which it is
not the case) that the Qawl Qadim is what he said it was, the Hanafi author
should have been more careful about his assumptions regarding the strict
and thoroughly systematised terminologies used in our school. The Imam's
'former view' does not automatically mean it is rejected, because, as
students of Shafi'i fiqh will have learned in the course of their studies,
not all of the Qawl Qadim are rejected, for there are a handful of them
which were made strong by a number of the immediate successors of the Imam
and by other early Shafi'i jurists (called the Mujtahid al-Tarjih; the
Assessors). These supposedly rejected opinions (as the reader will learn in
greater detail in the second part of our article) were retained or
rehabilitated, so to speak. Notwithstanding that, I must repeat here, in
case readers are lost in this mental, verbal and bracketed snarl, the
ruling that it is Wajib for the Ma'mum to recite the Fatiha whether in the
audible or inaudible prayers in every rak'a is not a Qawl Qadim of Imam
al-Shafi'i.

What is worrying is the Hanafi author's following statement: "Imam
Shafi'i's popular view [?-ambiguous term here; does he mean the Imam's or
the school's?] is that it is necessary for the follower to recite Surat
al-Fatiha in both types of prayers - audible as well as inaudible. This
view, although being the popular one [I take this to mean, Qawl Mu'tamad of
our school], is not necessarily his [i.e., al-Shafi'i's] final opinion [I
take this to mean, Qawl Jadid]." What does he mean by "NOT NECESSARILY his
final opinion"? It could be that he is conflating the Imam on the one hand,
and the Madhhab, on the other hand (remembering of course, that the Imam is
not the whole sum of the Madhhab, and that what is followed is the
collective effort of thousands of pious scholars, not just of one man).
(Another way of thinking about this is to ask: if it is already the
'popular view' held by living jurists, is that not good enough for the
Hanafi author?) Nevertheless, contrary to the Hanafi author's judgement,
the Qawl Mu'tamad of our school is indeed the Imam's final position, since
the opinion that "it is necessary for the follower to recite Surat
al-Fatiha in both types of prayers - audible as well as silent," is the
Qawl Jadid of our Imam. Understandably, reading al-Umm for non-Shafi'i
specialists is never going to be an easy task and the following
conclusions, I fear, are plainly wrong and must be corrected: "The words of
Imam Shafi'i, as relayed in his book Al-Umm, inform us that it is not
necessary for the muqtadi [the standard term used in our school for a
follower is Ma'mum, not as I assume here, the common term used by Hanafis]
to recite Sural [Surat] al-Fatiha in the audible prayers; however, it
should be recited in the silent prayers. He [i.e., al-Shafi'i] writes: 'And
we say that the follower recite in every prayer performed behind an imam,
in which the imam recites in a non-audible tone' (Kitab al-Umm 7:153 U)."
[A more faithful translation would be: "Whereas [reading waw-Hal; the Sahib
al-Hal is the Hanafi position presented in the previous sentence] we say,
"In every prayer made behind the Imam while the Imam's recitation is
inaudible, he [i.e., the follower; "wara' al-Imam" from the preceding
sentence] recites." [al-Shafi'i, al-Umm, 7:256]

The qawl which he quoted is the Qawl Qadim, which by the way, is NOT from
al-Umm 'proper', but is from an independent work that has always been
transmitted together with al-Umm (this work is like an 'appendix' to the
mother book), called Kitab Ikhtilaf 'Ali wa-'Abdullah Ibn Mas'ud; while at
the same time, the central chapters of al-Umm clearly record that the Qawl
Jadid is as follows: "al-Shafi'i says: It is obligatory [Wajib] for those
praying alone or in a group to recite the Umm al-Qur'an [i.e., the Fatiha]
in every rak'a; [a way] other than this does not suffice [i.e., because it
is the minimum or a Rukn of the prayer]." [al-Shafi'i, al-Umm, 1:210].

Ma sha' Allahu, kana! At first I was taken aback (and not a non-accidental
accident as it turns out) that your Hanafi author, innocently quoted and
relied upon an opinion of our Imam that is taken from his Kitab Ikhtilaf
'Ali wa-'Abdullah Ibn Mas'ud, which was, in fact, a work concerning the
Hanafi school-Allah is merciful indeed! In this work, our Imam assessed
some of the conflicting positions between the Hanafis and the two Sahabi
which their school relied upon. It is also known by the more common title,
Kitab Ma Khalafa al-'Iraqiyyun 'Aliyyan wa-Abdullah or its shorter title,
Kitab 'Ali wa-'Abdullah. This work is among our Imam's works on 'Ilm Khilaf
(note please, not 'Ilm Fiqh proper; and indeed our Imam is the Wadi'
[founder] of this highly specialised science as he is also the Wadi' of
'Ilm Usul [principles and methodology of the Law], in the same way that
Imams al-Ash'ari and al-Maturidi were 'founders' of the science of Tawhid
[theology], and the 'Arif al-Junayd with 'Ilm Tasawwuf, and the Qadi
al-Ramhurmuzi and the Hafiz al-Hakim with the science of Mustalahat
al-Hadith [technical terminologies of Hadith], and Abu l-Aswad al-Du'ali
with Arabic Grammar [Nahw], and along with the other Wadi'un of this Umma
(may Allah be well pleased with all of them and reward their services to
this Umma!). His other works on Khilaf include the Kitab Ikhtilaf Abi
Hanifa wa-Ibn Abi Layla, Kitab al-Radd 'ala al-Shaybani, Ibtal al-Istihsan,
Sayr al-Awza'i, Sayr al-Waqidi, and the controversial, Kitab Ikhtilaf Malik
wa-l-Shafi'i. Shafi'i scholars are fully aware that many of the positions
found in al-Shafi'i's Khilaf works belong to Qawl Qadim.

Now that we have reached the end of what I have to say regarding the
obvious mistakes that needed to be corrected by the (I'm sure) well meaning
Hanafi author (and this was done so that you, as a Shafi'i follower, will
not be confused in thinking that what we indeed do and act upon today and
everyday when we pray in a mosque is not something that is not the final
position of our Imam), then, I must here make it also clear to you that
this one case of inaccuracy of that Hanafi author should not lead you to
have su' al-zann of the author and mistrust anything that is sound and
correct from his book. It is rare nowadays to find books defending a
Madhhab (as I assume from its title this one is doing) and that is already
a baraka for the majority of Muslims who do follow one, whatever their
tariqa to Allah is-it is just that I feel disappointed here, at least in so
far as the Hanafi author did not get his facts right with regard to the
ruling of our school on this matter. (I am just wondering here (and please
do not take this seriously but only as a kind 'jest'): since the book is by
a Hanafi author, and the title is Fiqh al-Imam (and I'm assuming about Imam
al-Mujtadhid Abu Hanifa (may Allah be well pleased with him")), what are
you doing then reading a book on Hanafi fiqh and to end up revealing
scholars' dirty laundry!). It would be reasonable and understandable, after
all, for one to expect a good Hanafi or a Shafi'i scholar, being eager to
justify their fiqhi positions, even if it means, occasionally, such as our
case here that wrong conclusions were reached. In this case, the Hanafi
author should immediately be excused and his mistakes must be overlooked,
since he was a Hanafi scholar, and not a Shafi'i spokesman. That is why the
Nasiha of our Fiqh teachers will forever remain sound, which it all boils
down to: if you need to ask a furu' question or rely on a furu' judgement
about something relating to your life, then you should know better than to
rely on someone who is clearly not a representative of your own school.
Even if a scholar is someone 'famous' today, giving out Fatwas here and
there, on TV and radio, if he is unable to say out loud with which of the
four Sunni schools he is affiliated, then think hard before accepting his
judgements; for confusion and fitna will result from his answers.

The Qawl Mu'tamad of our school is unequivocally stated by Imam al-Nawawi
in his Minhaj (it is, by the way, al-Nawawi's Qawl Sahih [Sound Position]):

"The Fatiha is obligatory in every rak'a, except the rak'a of Masbuq [for
the meaning of this term, see below]." (In spite of this short and concise
expression, it contains more details than the various English statements I
have offered above concerning our Qawl Mu'tamad; in these few words, the
complete ruling of our school is present and is potentially intelligible to
us: wa-tata'ayyanu l-fAtiHatu kulla rak'atin illA rak'ata masbUqin.)
[al-Nawawi, Minhaj, 9].

Finally, we come to the heart of the article, namely with regard to your
fiqhi question, (question no. 2): "How does one recite behind the imam in
an audible prayer? Is it better to recite at the same time that the imam is
reciting or wait for him to completely finish the Fatiha (and then recite)?
Should the imam pause between the fatiha and the second surah to give the
follower a chance to recite?"

It is Mandub, Sunna or recommended for the Imam to have a pause after
reciting the Fatiha aloud [jahr], long enough for the Ma'mum to finish
reciting the Fatiha. There is no khilaf in the school regarding this rule.
The meaning of 'pause' here is for the Imam not to recite anything aloud
but to recite instead to himself [sirr]. During the 'sakta' period for the
Imam, it is Sunna for him either to busy himself with reciting some verses
from the Qur'an (while the Ma'mum recites his Fatiha) or to recite a
supplication [Du'a], and some also allow Dhikr (such as Subhan Allah).
According to our school, this is one of the six instances of sakta
requested (but not required) in our five daily prayers. The most complete
discussion of this, both for scholars and public, is by Imam al-Bajuri (may
Allah be pleased with him!):

(Some useful technical terms here (all of which are recited in Arabic):
Taharrum [opening "Allahu Akbar"; or the Takbirat al-Ihram];
Tawajjuh [opening supplication; or also technically called the Du'a Iftitah
or Istiftah];
Ta'awwudh [the words, "I seek refuge in Allah from the accursed Devil"];
Basmala [the words, "In the name of Allah, Most Merciful and Compassionate"];
Fatiha [the opening sura of the Qur'an; also known in our books as Umm
al-Qur'an];
Amin [the words, "Ameen"; also known technically as Ta'min];
Sura [any other verses other than the Fatiha];
Takbir al-Ruku' [saying "Allahu Akbar" during the movement from standing to
bowing, while raising one's hands in the process, i.e., a type of Takbir
al-Intiqal].

"It is recommended [Mandub] to have a slight pause: (1) between the
Tawajjuh and the Ta'awwudh; (2) just as it is recommended [to pause]
between the Taharrum and the Tawwajjuh, (3) between the Ta'awwudh and the
Basmala, (4) between the Fatiha and the Amin, (5) between the Amin and the
Sura, and (6) between the Sura and the Takbir al-Ruku'. These are the six
pauses that are recommended in a prayer. The length of all of those
(pauses) is saying the words, "Subhan Allah"; except for the one between
the Amin and the Sura [i.e., the fifth pause], with respect to the Imam in
the audible prayers, to the extent of the Ma'mum's recitation of the
Fatiha. It is [also] recommended for the Imam to be occupied there with
reciting the Qur'an or with saying a Du'a to himself [sirr]; but reciting
the Qur'an is better [Awla]. So the meaning of 'pause' there is not
reciting aloud, for otherwise the pause would not in effect be requested in
the prayer [meaning that the pause is not a 'real pause', one that is
devoid of recitation; Fa'ida note for students: among the legal
proof-construction [Istidlal] of this sakta is the analogy [Qiyas] with the
sakta of the Imam awaiting the second group (and the succeeding third or
fourth, if applicable) in the second rak'a of Salat al-Khawf or the Prayer
of Peril]." [al-Bajuri, Hashiya, 1:166].

The only exception to this rule, when it is not recommended for the Imam to
pause allowing for his Ma'mum to recite the Fatiha, is when the Imam knows
that the Ma'mum will not be able to hear him, such as the Ma'mum being deaf
[cf. Ibn al-'Imad, Qawl Tamm, 1:70].

However, since this pause is not a requirement but a mere recommendation
for the Imam (Shafi'i Imams should note this, as it is a sign of Ihsan in
their prayer), what should the Ma'mum do then if the Imam does not pause?
There is tafsil in this hukm. The following Kayfiyyat and examples [suwar]
are drawn from one of our important manuals, Sayyid al-Bakri's commentary
on the Fath al-Mu'in, the I'anat al-Talibin, and a reliable work of the
school dedicated to the group prayer, Ibn al-'Imad's famous al-Qawl al-Tamm
fi Ahkam al-Ma'mum wa-l-Imam. (Since the I'anat is the main source
[2:32-41, passim], citations to it will only be made whenever a text is
being translated; however the Qawl Tamm will be referred to when it
contains a point not mentioned in the former textbook.)

Case 1: In the case where the Imam does not pause, the next step down (one
that is far from ideal) is for the Ma'mum to recite the Fatiha while the
Imam recites the Sura (and reciting the Fatiha here is an exemption from
the general rule of listening to the Qur'an; see the discussion concerning
the school's evidence below). It is still recommended [Mandub] for the
Ma'mum to recite the Fatiha after the Imam has finished his Fatiha (and
this is known technically as Ta'khir al-Fatiha [delaying the Fatiha] by our
scholars), even if it means reciting one's Fatiha over that of the Imam's
Sura.

Case 2: The scenario furthest removed from Ihsan is when the Ma'mum recites
the Fatiha for no good reason while the Imam is reciting the Fatiha.
Nevertheless, there is no harm [la ba's] in doing so and it is the minimum
fiqhi ruling in this matter.

However, in the case when the Ma'mum thinks [zann] that either (a) the Imam
will only recite the Fatiha (without reciting the Sura) or (b) the Imam
will not pause for him to recite the Fatiha or (c) the Imam's habit is to
recite very short Suras or (d) the Imam is fast in his recitation, or there
is something else that will cause the time remaining after the Imam's
Fatiha to be so short that the Ma'mum thinks that it will not be possible
for him to complete the Fatiha before the Imam bows (he will have this
knowledge, for instance, after experiencing what happened to the Ma'mum in
example 1 below, where during the first rak'a he had to lag behind his Imam
in order to complete the Fatiha), then the Ma'mum should recite the Fatiha
while the Imam is reciting the Fatiha, so that he can keep up with the
requirement of Mutaba'a [following closely] in a group prayer (i.e., the
seventh condition [shart] of Qudwa [following the Imam] in the Fath
al-Wahhab).

This is because, unlike in example 1 below, when the unsuspecting Ma'mum
was waiting for the Imam to pause so he could recite his Fatiha, the Ma'mum
(in the second rak'a, for instance) had knowledge of the possibility that
if he waited until the Imam finished the Fatiha, he can lag behind the Imam
again this time if he does not recite the Fatiha while the Imam is reciting
the Fatiha. In this case, however, he may not have a valid excuse ['udhr]
to lag behind the Imam (while the Ma'mum in example 1 did have, because he
lacked this knowledge), and he may be considered a negligent [Muqassir]
Ma'mum (see example 3 (b) below) if he waits until the Imam finishes
reciting the Fatiha.

There is further tafsil in this rule. If the Ma'mum is a Muwafiq (see below
for definition) or he thinks that he will be Muwafiq, then it is Mandub or
recommended for him to recite the Fatiha with the Imam (only if he has good
reason, that is to say, this knowledge; whatever the case, if it turns out
that he is a Muwafiq he will not be negligent). (This is what is meant by
Imam al-Ramli's statement that it is Mustahabb to recite with the Imam when
one has this knowledge; al-Ramli, Nihaya, 2:231). If the Ma'mum is a Masbuq
(again, definition is below) or knows that he might be a Masbuq based on
the experience of his previous rak'a, then he must [luzum] recite the
Fatiha with the Imam (because in this case, he will be negligent). (Only
for students of Fiqh, lest you confuse yourselves: the Ma'mum who thinks
that he will have to perform Mufaraqa [to intend to break off from
following the Imam and then do so] in order not to invalidate his prayer
(i.e., upon reaching the lag-limit for the Masbuq or the Ma'mum without
'udhr, namely, 2 long integrals [Rukn Tawila]) must recite the Fatiha with
the Imam, if he wants to remain in the group prayer.) (That is what is
meant by Imam al-Bujayrimi's statement, that of the five types of Muqarana
or Musawaqa [action performed simultaneously with the Imam], the type that
is Wajib, is to recite the Fatiha when one has this knowledge; al-Bujayrmi,
Hashiya, 2:351; cf. Ibn Hajar, Tuhfa, 3:187).

This case no. 2 (that the Ma'mum can recite the Fatiha together with the
Imam's Fatiha (i.e., Musawaqa or Muqarana) or even to precede him before
the Imam finishes his own Fatiha [Musabaqa]) is allowed because preceding
the Imam in Rukn Qawli [Spoken Integral] is not as serious as preceding him
in the Rukn Fi'li [Active Integral]. It does not mean however, that it is
not altogether disliked, since whenever the phrase 'no harm' is used in our
school, the technical meaning of Khilaf Awla or 'better not to do' is
understood; in this case, although it is better not to do this, the prayer
is still valid.

It is the practice of our scholars that whenever this issue is being
mentioned, they will usually bring up a conflicting position within the
school (which is not the Qawl Mu'tamad), namely that if the Ma'mum has
somehow preceded the Imam's Fatiha, then it is Wajib to repeat the Fatiha
(while the Imam is still reciting the Fatiha or after the end of the Imam's
Fatiha; doing the latter is better). (While the Qawl Mu'tamad is for the
Ma'mum merely [Mandub] to repeat his Fatiha.) Because of this, the
Muta'akhkhir jurists in the school consider the original rule [al-Asl] for
case 2 to be that of Khilaf Awla. [cf. Ibn al-'Imad, Qawl Tamm, 1:73]. It
is in deference to these differences, that we have the ruling in the school
that to delay the Ma'mum's Fatiha until after the Imam's (i.e., the Ta'khir
al-Fatiha) is a recommended act (as long as the Ma'mum expects to recite
the Fatiha during the Imam's pause for him or during the Imam's recitation
of the Sura).

(The following is something special for very bright students. This is Ibn
Hajar's rundown of the legal bases underlying that furu' judgement and is
full of meaning and timely. So ta'ammal and think carefully, and seek out
and understand their 'ilal!

"For it is known that the cause [mahall] for the recommendation that the
Ma'mum delay his [recitation] of the Fatiha is the Ma'mum's expectation
that the Imam will pause after the Fatiha long enough for (the recitation
of the Fatiha) or his expectation that the Imam will recite a Sura long
enough for (the recitation of the Fatiha). On the other hand, the cause for
the recommendation that the Imam pause is that he does not know whether the
Ma'mum is reciting the Fatiha with him or else he cannot judge [where the
Ma'mum is in] the recitation of the Fatiha." [Ibn Hajar, Tuhfa, 3:187]. So,
for example, if a Shafi'i Imam were to lead a group of Hanafi Ma'mums, then
it is no longer recommended for him to pause after the Fatiha. Likewise, it
is safer for the Imam to pause after the Fatiha, unless if they have
conferred before the prayer and know where the other stands! This is the
optimal ruling and the peak and their Adab.)

In sum, if for some good reason, the Ma'mum does not think that he will be
able to recite the Fatiha during the the Imam's recitation of the Sura,
then to recite the Fatiha with the Imam will be an exception to the
original hukm of Khilaf Awla as we have seen with the case of the Ma'mum in
case 2. (For example, this usually happens during the Tarawih prayers in
many of the lands which are traditionally Shafi'i, such as the Hadramawt,
the Far East and East Africa, where the Imam normally recites short Suras.
Historically, this was how the Tarawih was performed in Mecca and Egypt:
reading short suras instead of completing the whole of the Qur'an [I'anat,
1:266-267]. Nevertheless, it is better, if the Imam happens to be a Hafiz
of the Qur'an, to recite the entire Qur'an (such as by reciting one juz'
per night). If not, the hukm is only Khilaf Awla (and the ruling is not at
the more serious level of Mandub-Makruh.) If this happens, and the Ma'mum
decides to recite the Fatiha while the Imam is reciting the Fatiha, then it
is best if he can start his Fatiha only after the Imam has started his so
that he does not precede the Imam in the recitation of the Fatiha, just
like in the Rukn Fi'li, and only Allah knows best!

Examples that may arise:

Note that in the following examples, the status of Muwafiq is assumed for
the Ma'mum. (It is important to mention here that in discussions concerning
group prayer, it is crucial to identify the status of the Ma'mum; because
whenever a Ma'mum's status is mentioned, for example in our case, Muwafiq,
its opposite status, Masbuq, will have a different ruling. Doing this will
avoid ambiguity when reporting a fiqhi ruling concerning the group prayer,
because very different rules will arise from the two statuses.)

When in a group prayer, Subh or Tarawih, a Ma'mum is in either one of these
two statuses. A quick definition of Muwafiq and Masbuq is in order then.

A Muwafiq [as a one word term we can use, 'current'] is the Ma'mum who
catches up with the Imam during the standing position [Qiyam] and soon
enough for him to finish reciting the Fatiha in keeping with the length of
the average recitation [qira'at mu'tadala] according to what is customary
['urf] by the public.

(Note, therefore, that the length of the average recitation (not too 'fast'
and not too 'slow') is neither according to the Imam's recitation nor the
Ma'mum's.)

A Masbuq [a one-word term would be 'late'] is the Ma'mum who did not catch
up with the Imam during the standing position soon enough for him to finish
reciting the Fatiha in keeping with the length of the average recitation
according to what is customary by the public.

It is therefore possible for the Ma'mum's status to change between being a
Muwafiq and a Masbuq at any time during any one of the four rak'as of a
prayer; even as the Asl is being a Muwafiq. However, it is usually the case
that if one begins the prayer with the Imam from the start, coinciding with
the Imam's opening Takbir, the Ma'mum will be a Muwafiq (unless of course
in very rare cases when the Imam's recitations are just way too fast (which
is very bad) to the extent that the total length of the Qiyam falls short
of the 'average recitation' the public takes to finish the Fatiha, whether
the Ma'mum recited the Fatiha or not, or whether the Imam recited a Sura or
not, whether the Imam did pause or not, or whether the Imam recited the
preliminary Mandub readings or not). On the other hand, it is usually the
case that if the Ma'mum joined the prayer late such as while the Imam is
halfway through reciting Surat al-Kafirun in the first rak'a, the Ma'mum
will be a Masbuq. Again, to contrast this with the case of the Ma'mum who
joined the prayer late but this time while the Imam is about to begin
reciting Surat al-Duha, then the Ma'mum will most likely be a Muwafiq. All
of this, of course, depends ultimately on whether the Ma'mum is able to
catch up with that 'average recitation' (i.e., the common denominator in
arithmetic, so to speak or the Hadd al-Awsat [Middle Term] for students of
logic or Mantiq!). In case one is in doubt [shakk] over one's status,
whether one is a Muwafiq or Masbuq, then the more precautionary [Ihtiyat]
position is to assume that one is a Muwafiq and as it turns out, finish
reciting the Fatiha. [Ibn Hajar, Tuhfa, 3:177].

The offshoot here is that if the Ma'mum is considered a Muwafiq, then he
will have a valid excuse or 'udhr, like a slow reciter [bati' al-qira'a]
would, to lag behind the Imam in order to finish reciting his Fatiha and
thereafter following the Imam by default [Qudwa Hukmiyya]. (The term Qudwa
Hukmiyya is from Ibn al-'Imad (may Allah be pleased with him!); [Ibn
al-'Imad, Qawl Tamm, 1:33].) The hukm for the Masbuq, on the other hand, is
that he does not have a valid excuse to lag and he must therefore follow
the Imam to the letter, so to speak [i.e., Qudwa Haqiqiyya].

A quick example of Qudwa Haqiqiyya is the case of praying behind the 'way
too fast' Imam above so that when the Ma'mum stands from his Sujud or the
First Tashahhud (note that one must leave the Tashahhud in this case, even
if not finished, in order to prevent oneself from becoming negligent), he
finds that the Imam is either about to go into bowing or have already bowed
(therefore, not catching up with that 'average recitation' with the Imam
while standing); in this case, it is Wajib for the Ma'mum to bow with the
Imam and the former is entitled to (and must) skip the Fatiha (but before
the Imam bows, whatever one can recite of the Fatiha, one recites as much
as possible). The Imam, in this case, will be responsible for the Ma'mum's
Fatiha (and this is the only case (it includes the subcase, Ziham
[overcrowding], discussed in Bab al-Jumu'a) when the school allows the
Ma'mum to omit reciting the Fatiha in a prayer). When he bows with the
Imam, even when the Masbuq's Fatiha is not finished, he has caught that
rak'a. If he does not bow with the Imam and the Masbuq persists on
finishing the Fatiha (or if he manages to finally bow but does not manage a
Tama'nina [repose] with the bowing), and during the course of that the Imam
straightens up [I'tidal] from his bowing position (whereas if the Imam is
already going down into Sujud (while the Masbuq has not yet bowed), the
Ma'mum's prayer is invalidated), then, he will have missed that rak'a and
will need to replace it when the Imam ends the prayer. It is possible for
this to happen in every rak'a if one happens to pray behind an Imam such as
this. (Also, if one comes to the prayer late, that is to say, after the
opening Takbir (and it is not necessarily the case that he will be a Masbuq
here), it is more precautionary then to omit the preliminary Mandub
readings and one should begin the prayer immediately with the Fatiha in
order to avoid being negligent as in example 3 (b) below; Ibn Hajar, Tuhfa,
3:181 and 3:176).

On the other hand, those who have Qudwa Hukmiyya are permitted, in order to
finish their Fatiha, to lag behind the Imam up to three long integrals,
namely, up to the second Sujud (if the Ma'mum is still standing), and this
is not including the two short integrals (namely, the I'tidal and the Julus
[sitting between the two prostrations]). (Note for students reading the
Qawl Tamm: what Ibn al-'Imad means when he says a lag of five Rukns is the
three long ones (Ruku', 1st Sujud, and 2nd Sujud) plus the two short ones
(I'tidal and Julus); Ibn al-'Imad, Qawl Tamm, 1:33.) It goes without
saying, that the three long integrals too do not include the Istiraha
[sitting of rest after the 2nd Sujud before standing] and any of the
Tashahhud [testification of faith].

So if the Muwafiq catches up with his Imam within the limits of these three
long integrals, then he will have caught the rak'a also. An extreme example
is, before the Imam sits for the Final Tashahhud, the Muwafiq has already
bowed. This is so when the length of the Muwafiq's lag has not yet gone
into the fourth long Rukn. However, in the case that it does, such as, the
Imam is already in the second Qiyam reciting the Fatiha, while the Muwafiq
is still in his first Qiyam finishing his Fatiha, the Ma'mum's prayer will
be invalidated if he does not do either one of two choices here: (1) the
Ma'mum omits from finishing his Fatiha and immediately follows where the
Imam is (therefore, in this choice, he has to repeat his Fatiha for this
new rak'a); and after the Imam finishes with Salams, he has to stand up
and perform the missing rak'a; or (2) the Ma'mum must intend to break off
from following the Imam and do so (i.e., Mufaraqa) at that point, and
thereafter, the Ma'mum would continue with his prayer alone until he
finishes it (thereby, in this choice, he will have to finish reciting the
Fatiha). If the Ma'mum fails to make his choice by the time the Imam is in
the fourth Rukn while he is still in the first, his prayer is invalidated
(whereas, there would be no harm if the Imam's movement coincides with that
of the Ma'mum's such as, when the Ma'mum is moving to the bowing position
and at the same time, the Imam is moving to either the Qiyam or the
Tashahhud).

This is because there is a special dispensation for the Muwafiq slow
reciters in our school as well as for other Muwafiqs with a valid excuse,
according to which the rules of lagging behind the Imam with respect to the
Masbuq are considerably different, in that the Muwafiq's Qudwa status with
the Imam is longer than the Masbuq before the former is considered to have
missed a rak'a or even to have invalidated his prayer. In truth, the
Muwafiq's dispensation is with regard to lagging behind the Imam, while the
Masbuq's dispensation is with regard to omitting the Fatiha. (That is why,
with respect to the rule of what to do when one is in doubt about being a
Muwafiq or a Masbuq, one in fact chooses in the end to disregard the
dispensation of omitting the Fatiha in favour of lagging behind the Imam,
since the former is a graver dispensation as far as the school is concerned.)

So a Muwafiq slow reciter (whether because the Ma'mum is a non-Arab or
because of some natural inability, not because of deliberate waswasa
[obsessive doubts], for example), is not entitled like the Masbuq to skip
his Fatiha and bow with the Imam; he must instead complete his Fatiha even
if it means lagging behind the Imam.

End of extra notes on the Muwafiq and Masbuq. Now to continue with the
examples that may arise from our original legal discussion (remembering
that in all of the examples below, the Ma'mum is a Muwafiq, except if
stated otherwise).

Example 1: Unlike in case 2, the Ma'mum does not know the Imam, and
instead, he was expecting and waiting for the Imam to pause (since not only
because he does not know what to expect from this Imam, but also, he
intended to do the Mandub of delaying his Fatiha and intending to recite
the Fatiha during that pause or during the Sura of the Imam), suddenly the
Imam does not pause and bows instead (without reciting the Sura, which is
rare), or (what is more common) recites instead a short Sura or reciting a
Sura very fast, for instance, (but unlike case 1) leaving the Ma'mum very
little time to finish his own Fatiha, by which time the Imam bows. In this
case, the Ma'mum is considered to have a valid excuse like the slow reciter
above. When that happens, the Ma'mum must finish his Fatiha as in the case
of the slow reciter (and quickly perform the rest of the Rukn of the prayer
to catch up with the Imam), and provided that the Imam is not more than
three long integrals ahead of the Ma'mum, the Ma'mum will have caught that
rak'a with the Imam. This is an example of Qudwa Hukmiyya.

Example 2: If the Ma'mum was reciting his Fatiha with Tartil [correctly and
slowly; that is to say, distinctly pronouncing each letter, which is an
established Sunna] (when the Imam is not), and the Imam bows before the
Ma'mum could finish his Fatiha, while at the same time, if the Ma'mum were
to recite it fast he could have finished in time before the Imam bows, then
the hukm of this Ma'mum is like in the example above and the slow reciter,
in that he also has a valid excuse to finish the Fatiha. This is another
example of Qudwa Hukmiyya. [cf. Ibn al-'Imad, Qawl Tamm, 1:32].

If what is described in examples 1 and 2 happens to an Imam who is not
familiar with the rulings of our school (and he becomes shocked by that),
then he must come to realize that this is a dispensation allowed by our
school. In fact, this should make the Imam think carefully about it so he
can see (for his own good, since it is the stricter position and it comes
out of Wara') the mercy in not rushing his Qiyam and his prayer, either
reciting properly with Tartil or giving the Shafi'i some leeway by pausing
for him, or reciting a longer Sura (but not necessarily a Sura that is
exceedingly long, for it is still recommended to keep the recitation of the
Sura brief [takhfif al-qira'a]).

Example 3:

(a) In the first rak'a of the Imam, the Ma'mum missed his opportunity to
finish reciting the Fatiha before the Imam bows, on account of having
busied himself with the preliminary Mandub readings or listening
attentively to the Imam's recitation of the Sura (while he has not yet
recited his own Fatiha) or doing nothing, in this case, he must finish his
Fatiha and he has the 'udhr of the three long rukns, as in the case of the
first two examples. This is also Qudwa Hukmiyya. The Fath al-Mu'in is
unequivocally clear on this:

"The Muwafiq is exluded from the [rule of] the Masbuq. So, if he did not
finish [reciting] the Fatiha on account of having been busy with the
preliminary Mandub readings, such as the opening supplication, even if he
thinks that he will not be able to catch up [reciting] the Fatiha with him
[i.e. the Imam, during standing; in which case, it is not recommended
anymore for the Ma'mum to recite the preliminary Mandub readings], then, he
becomes like the slow reciter [that is to say, the rule of the slow reciter
applies to him in this case also] as mentioned previously, indisputably
[i.e., without any khilaf in the school]." [I'anat, 2:37-8]

This is the Qawl Mu'tamad of the school on this issue, and as Sayyid
al-Saqqaf, another commentator on the Fath al-Mu'in makes clear, this is
among the six difficult cases (in fact, there is a final total of 8 cases)
of judging between who is considered a Muwafiq and who a Masbuq, which
Imams al-Ramli and Ibn Hajar (may Allah be pleased with both of these
Muta'akhkhirs!) agreed upon, [al-Saqqaf, Tarshih al-Mustafidin, 111].
(There are famous disagreements between our two great Imams in these very
detailed and difficult discussions. These include questions such as the
status of the Ma'mum who falls asleep during the First Tashahhud (in such a
way that does not invalidate his Wudu', of course) and discovers upon
waking up that the Imam is in the bowing position or is about to bow,
whether such a Ma'mum is to be considered a Muwafiq or a Masbuq.)

(b) If the Ma'mum is a Masbuq under these circumstances, then, although he
is normally entitled to skip the Fatiha and bow with the Imam, this time,
he cannot. This is because he is now considered negligent [muqassir]. In
this case, he must then recite the Fatiha the length he estimates to be
equivalent to either one of the three cases above (and this is another
instance of a Muqallid making his own Ijtihad Zanni, such as the case with
finding the Qibla), before following the Imam further (and unlike the
Muwafiq with 'udhr, according to one qawl, he must this time choose between
either (a) Mufaraqa from the Imam or (b) go straight to where the Imam is
in order to prevent invalidating his prayer (so if the Imam is in the
I'tidal position, he omits his bowing (and thereby loses that rak'a); so
that if the latter happens, then his recitation of the Fatiha was in fact
done to prevent him from invalidating his prayer). This is an example of
Qudwa Haqiqiyya.

Example 4: There has been a suggestion about reciting each verse of the
Fatiha 'right after' each verse said by the Imam so that the Ma'mum may
listen to the Imam's recitation as well as fulfilling the Mam'um's
requirement of reciting the Fatiha (and this will make the Ma'mum
completely free to listen to the Imam's Sura if the Imam does not pause).
Indeed, this is a subcase of case 2, namely for the Ma'mum to recite the
Fatiha while the Imam is reciting the Fatiha. One must remember, however,
that case 2 is a step down from case 1, and case 2 is already something
done as a last resort, because it is still recommended for the Ma'mum to
delay the Fatiha until the Imam finishes his Fatiha. (In other words, if
the Ma'mum has no good reason to delay reciting his Fatiha until after the
Imam's Fatiha (such as the knowledge the Ma'mum have in case 2) then the
hukm is Khilaf Awla.) Nevertheless, there is no harm in doing what is
suggested here.

There can however be four possible complications with this suggestion: (a)
if the Imam does not pause in between his verses of the Fatiha or (b) the
Imam's pause is too quick for the Ma'mum to the extent that he will not be
able to finish reciting a particular verse before the Imam starts the next
one or (c) because of wanting to keep up with the irregular Imam, the
Ma'mum (especially a slow reciter) might be confused and therefore forget
which verse he is on or even (d) lose his Muwala [continuity] when reciting
the Fatiha. Case (d) is the most serious. Here he would need to repeat his
Fatiha (thereby making this thoughtful suggestion a cause of trouble).

According to our school, observing the Muwala is an essential part of
reciting the Fatiha. The jurists define 'Muwala' as "to utter each word
uninterruptedly by not seperating each one from the next by more than a
pause for breath [Sakta al-Tanaffus; known also as the Sakta al-Istiraha or
the pause for rest; this applies to those withuot any valid excuse to have
a long pause] or stammering [or the like, for those with a valid excuse to
have a long pause]." [I'anat, 1:141; also 1:142-3; cf. al-Bajuri, Hashiya,
1:149-150].

This may create difficulties if the Imam recites the last and the longest
verse of the Fatiha slowly, and with Tartil, from "SiraATalladhIna...", to
the end (note that to stop at "an'amta 'alayhim" is Khilaf Awla; I'anat,
1:147), for example, since it is likely that the Ma'mum's Sakta al-Istiraha
may be longer than what is necessary, and this will break the Muwala.

If these problems can be avoided, then it is sufficient. However, the fiqhi
ruling concerning example 4 cannot be considered Mandub or recommended by
the school. Otherwise the various Mujtahids and jurists of the school
throughout our long history would have said it to be so. One can even see
that the question of Muwala could be a possible source of doubt and
confusion among the Shafi'i 'awwamm and that the scholars would have to
deal with questions from the public such as, "Have I observed Muwala,
although I stopped for x amount of time?" and so on.

Because this suggestion is dependent again on the style of the Imam's
recitation, it may only work for some and not for others. It therefore
requires a certain degree of cooperation and understanding between the Imam
and the Ma'mum before the prayer; and for us, the cooperation is in the
form of the pause that the Imam is requested to make on behalf of the Ma'mum.

I am aware of the sincere wish we all have to listen attentively to the
Imam's recitation of the Sura (even in the face of our school's exempting
reciting the Fatiha from the command to listen to the Qur'an whenever it is
being recited, see below): that is why it is best to pray behind a Shafi'i
Imam, if one cannot find another Imam who understands our plight and will
make leeway for us. (May Allah make others understand us in this matter,
for there is Rahma in this!)

Now down to the technical bits. The following are some legal discussions on
the primary texts for the legal rulings of the Shafi'i school. Our
discussions of this evidence are restricted to what may cause doubt for
followers of our school, because it will probably appear to untrained and
non-initiated Shafi'i eyes that they undermine our Qawl Mu'tamad (in that
it is Wajib for all, in all cases to recite the Fatiha, except of course
for the Masbuq in a jama'a prayer). (Thus reading books on 'Ilm Khilaf is
not advisable; nor is it good when answering a fiqhi question to present
the evidence of primary texts, because it will only encourage the untrained
to be concerned with the evidence instead of with the answers; see below
for more on this Nasiha.) Primary texts in favour of the Qawl Mu'tamad will
largely be omitted here, except to mention the one principal source (and
another below) as related by our Shaykh al-Islam Zakariyya al-Ansari (may
Allah be pleased with him!):

"The fifth (Rukn of the prayer) is the recitation of the Fatiha because of
the [its 'illa or legal basis is the following] Hadith related by both
Bukhari and Muslim [khabar sahihayn] [known as the Hadith of 'Ubada that
establishes the Fatiha:]
"lA SalAta li-man lam yaqra' bi-fAtiHati l-kitAbi" [There is no prayer for
those who do not recite the Fatiha], that is to say, in every rak'a.
(al-Sharqawi: this includes both Imam and Ma'mum even in an audible prayer.
The author [i.e., Shaykh al-Islam] clarified this Hadith by other Hadiths,
and this Hadith comes from more than 20 companions [and technically it is
called Mashhur]. As for the [conflicting] Hadith [known as the Hadith of
Jabir]: "man SallA khalfa l-imAmi fa-qirA'tu l-imAmi la-hu qirA'atun"
[whoever is praying behind the Imam, the Imam's recitation is his
recitation; discussed below], it is made weak by Hadith masters [Huffaz])."
[al-Sharqawi, Hashiya, 1:186-7].

(It is not my habit to present a discussion on primary texts, and it must
be pointed out that presenting what could be 'sensitive' discussions
involving contradiction of primary texts [ta'arud al-adilla; which is what
will transpire below] is to be discouraged; and discussions of detailed
scriptural proofs and dalils should not be presented to those who are
unable to make heads or tails of the evidence, that is to say, the public
(lest they be encouraged in thinking that the right place to go searching
for fiqhi rulings is the voluminous Hadith collections, and not small fiqhi
works like the Reliance and the Maqasid; or worse, such discussion might
lead simple followers of the other schools to think that our proofs are
'stronger' than the position held by their respective schools (thereby,
causing fitna and confusion; I must make it clear, therefore, that it is
not my intention to undermine the positions of the other schools by
presenting some of the contrary evidence offered by our school), because
the concern for all, 'awwamm and scholars alike, should be with the 'amal
and the rulings as to whether they are either Wajib, Mandub, Mubah, Makruh,
or Haram; and if one had no qualms in trusting the judgements of
outstanding Imams such as al-Nawawi and Ibn Hajar, in the first place, then
people would spend less time being concerned about the evidence behind the
'amal). This can be a distraction and a source of much confusion (and
'evidence-talk' of this and that being 'stronger' and 'closer' to the truth
or to the Qur'an and the Sunna might lead the person to change the way he
does things every time he thinks something is stronger until the day he
dies). (May Allah keep us away from this fitna and protect us from Iblis'
game, and we ask Allah not to make the ta'arud adilla below the cause of
mukhalafa qulub with others and may He make it easy for us to go about our
normal lives and do what we were originally supposed to do in this dunya!))

I. Among the primary texts is the following Qur'anic verse:

wa-idhA quri'a l-Qur'Anu fa-stami'U la-hu wa-nSitU la'allakum turHamUn
[Whenever the Qur'an is being recited, listen to it and be silent, so that
you may find mercy.] (al-A'raf, 7:204).

Our jurists explain that the tafsir of the word 'Qur'an' in this verse is
not originally referring to verses of the Qur'an itself, but the Friday
sermon [khutba al-Jumu'a]. So the real meaning of this verse is: when the
Khatib [Friday preacher] delivers his Khutba, then listen to him
attentively and be silent contentedly, so that you may receive His mercy.
[cf. Tafsir al-Jalalayn 1:318-9; another Shafi'i mufassir, Imam al-Khazin
(may Allah be pleased with him!) [al-Khazin, Tafsir, 2:160] confirms this
to be what is narrated from among the Ahl al-Tafsir of the Tabi'in:
Mujahid, Ibn Jubayr, and 'Ata (may Allah be well pleased with them all!)].

The Shafi'i school (with all due respect to the other schools who disagree
with us on this issue, for as Ahl Sunna wa-l-Jama'a, we agree to disagree
on this point in order that we find Allah's mercy) says that this verse has
no relation [ta'alluq] whatsoever with the issue of reciting the Fatiha
behind the Imam, and they disagree (which is a Rahma for the Umma) with
those who take this verse as the legal basis for not reciting the Fatiha.
Even if we were to admit that this verse is related to the recitation in
the prayer (which we do not), then we can say that this is an additional
reason why the Imam should pause for the Ma'mum to recite. Also, it could
be said that the prohibition in this verse is with regard to the recitation
of the Sura, not the Fatiha. Furthermore, the verse is considered by Usuli
scholars as an 'Amm Makhsus or 'Amm Mutlaq [Unspecified Absolute;
technically, an 'Amm that is specific to 'Amm], because it does not include
firstly, a Qarina [indication] that would remove the possibility that it
might be subject to Takhsis [specification of the general] by something
else, and secondly, it too does not include a Qarina that would remove its
general and unspecified character. (The point here is that the verse does
not contain an indication that it is preventing the recitation of the
Fatiha.) Also, because the verse is an 'Amm Makhsus, some of our jurists
maintain that we can benefit only from its general Nasiha and I'tibar
[lessons]. For that reason, the verse can only lead to rulings such as
either Mandub or its opposite, Makruh, but not definitely Wajib or Haram.

Apart from the two interpretations already mentioned above, there are two
more which Shafi'i jurists also accept: (3) that this verse was revealed as
one of the legal bases for the prohibition in prayer of Kalam [a fiqhi
technical term to mean "an utterance of even one meaningful letter," such
as 'qi' [the Fi'il Amr of "wiqaya"] (notice dear readers, how this word,
"kalam", is an excellent example of an equivocal term [ism mushtarak] in
Arabic (indeed classical Arabic texts are full of equivocal words, and that
is one of the reasons why we need teachers to illuminate us as to their
often ambigious and obscure meanings or even just to tell us when we are
encountering one), for "kalam" is used differently and has specific
definitions [hadd] in some of our major disciplines: Tawhid, Tasawwuf,
Nahw, and Usul; and despite all this, "kalam" is still not stripped of its
lughawi and original lexical meanings]); and (4) for the prohibition of
(fiqhi) Kalam in any Qur'anic Majlis.

Even in this last tafsir, which is 'umum [general and unspecified] (with
the meaning that when at any time or at any place where the Qur'an is being
recited, one should remain silent, otherwise the hukm is Makruh), Shafi'i
jurists understand the meaning to have been specified and exempted for one
case only (namely, for the case of those reciting the Fatiha in their
prayers), by no one other than the Prophet Muhammad (may Allah's blessings
and peace be upon him!) himself. This is because another Hadith of 'Ubada
(this time, known as the one exempting the Fatiha) has come down to us, and
since it is rigorously authenticated [Sahih] (confirmed by the Hadith
masters of our school, the Hafizs, al-Hakim and al-Bayhaqi), it has become
the primary basis for our Takhsis and of our specification of the general:

Other Hadiths that are specific in character [Lafz Khass] and have reliable
narrations also show that the Prophet exempted the Fatiha, but there is
really no point bringing them out here.

In short, our jurists and usuli scholars see that those who do not make the
Fatiha to be Wajib for recitation behind the Imam during the audible
prayers are relying on proofs which are 'umum; while both, the exception
and the command for the recitation of the Fatiha, are specific. Therefore,
what is 'umum has been takhsis and specified here, and this is an example
of a Takhsis al-'Amm (in this particular example of (4), of the Kitab by a
Sunna Mashhura), following the usuli principle:

wa-binA'u l-'Ammi 'alA l-khASSi wAjibun
[The general must be on the basis of the specific].

Because the exemption of this verse is specific only to reciting the Fatiha
in the prayer, this explains why we are not supposed to recite, for
example, after reciting our minimum Fatiha, any further Sura, but to listen
attentively to the Imam's recitation instead. That is why, for all
concerned, it is good Adab if the Ma'mum and Imam can cooperate together
and be literally muwafiq (from the start!) in this matter, so that, for
example, the Imam makes that pause or reads slowly with Tartil (and
especially if the Imam is a Shafi'i, who is better placed to know the
reasons for doing so, as this comes out of Wara' and what is best and the
way of Ihsan). The fiqh ruling is always easy, the difficulty is always
with its adab; fiqhi works and judgements are always dry save with their
close companion, Tasawwuf. It is through these considerations that the
ruling is reached that it is recommended for the Imam to pause for the
Ma'mum, as we have seen in the Kayfiyyat above.

In sum, this verse is too general to apply to a specific ruling, and our
school has appropriately specified the general here.

II. The Hadith of Abu Hurayra (may Allah be well pleased with him!) which
says:

Some may understand this Hadith to mean that the Imam's recitation of the
Fatiha is performed on behalf of the Ma'mum. Yes, that may be so for the
other schools (and there is Rahma of the Umma in that), but as far as we
are concerned, the meaning of this Hadith is that the Imam's recitation is
sufficient for those who are considered Masbuq (and that explains why those
who are Masbuq should just bow when the Imam bows, even if the Ma'mum did
not or has not finished reciting his Fatiha; but of course there is tafsil
and further detail regarding that issue).

In sum, this Hadith is too general to apply to a specific ruling, and our
school has specified the general by interpreting it.

III. The Hadith of Abu Hurayra (may Allah be well pleased with him!) which
says:

innamA ju'ila l-imAmu li-yu'tamma bi-hi fa-idhA kabbara fa-kabbarU wa-idhA
qara'a fa-nSitU [The Imam is made only to be followed. When the Imam makes
the Takbir, you [too] make the Takbir. When he recites, be silent] (Related
by Ahmad, Abu Dawud, al-Nasa'i, Ibn Majah, and al-Bayhaqi).

According to the principle Hadith master of our school, Imam al-Bayhaqi, as
well as Abu Dawud (may Allah be pleased with them both!), the phrase, "when
he recites, be silent," is added later and there is controversy over who
added it. [cf. al-Bayhaqi, Sunan, 2:156-7; and al-'Azimabadi, 'Awn
al-Ma'bud, 2:236].

In sum, due to the problems with the matn of this Hadith (technically known
as a Mudraj Hadith), it cannot be used to contradict the rigorously
authenticated Hadiths of 'Ubada related by Bukhari, Muslim and others; and
even if this Hadith were authenticated (which it is not), then the same
arguments used to explain the verse of al-A'raf above are used for this
Hadith.

IV. The Hadith of Jabir (may Allah be well pleased with him!), which was
brought out above by al-Sharqawi:

Unfortunately, as Imam al-Sharqawi (as well as the rest of our fuqaha',
including al-Nawawi, al-Ramli, who usually have a discussion of this
Hadith) makes clear above, that this Hadith is not rigorously authenticated
and is made weak [Da'if] according to the Hadith masters, because of some
problems in its Riwaya [narration]. [cf. al-Bayhaqi, Sunan, 2:159].

According to the Shafi'i school, weak Hadiths cannot be used in the primary
process of derivation [istinbat] to derive a ruling of the furu' at the
level of Wajib or Haram (because they do not have a necessary legal
implication [lazim] that can be derived from them, on their own), but only
Mandub or Makruh (and as some scholars call it, at the level of what is
virtuous, the Fada'il 'Amal, otherwise, not what is at the minimum). Even
if this Hadith were rigorously authenticated (which it is not), then the
solution of our fuqaha' is to say that this Hadith refers either to the
Masbuq or to the recitation of the Sura, but not the Fatiha.

In sum, due to problems with the riwaya of this Hadith, Hadiths such as
this one are of no consequence to the rigorously authenticated Hadiths of
'Ubada that contradict them.

V. The Hadith transmitted by Ibn Shaddad (may Allah be well pleased with
him!):

man kAna la-hu imAmun fa-inna qirA'ata l-imAmi la-hu qirA'atun [Whoever has
an Imam, the recitation of the Imam is sufficient for him] (Related by
Ahmad, al-Daraqutni, and al-Bayhaqi, with variants).

The transmission of this Hadith ends with Ibn Shaddad (may Allah be well
pleased with him!) who is among the Tabi'in. This Hadith is therefore known
as Mursal [technically, a Hadith reaching the Prophet only through the
isnad of a Tabi'in], and again, as with the above Hadith, our school does
not make use of Mursal Hadiths to reach a definitive ruling.

There is another separate transmission which ends with the Sahaba, Jabir
(may Allah be well pleased with him!) and with a slightly different variant
to its matn (which would remove the Mursal status of this Hadith).
Unfortunately, there are serious problems with its Tabi'in transmissions
that make the Hadith weak. [cf. al-Bayhaqi, Sunan, 2:160].

In sum, either this Mursal or the other, Da'if, Hadith, could not measure
up with the Sahih Hadiths that form the primary basis for the fiqhi ruling
of our school in this matter.

For the untrained eye, this Hadith might at first appear strong due to the
large numbers of scholars relating it (including of course, our own
Mujtahid). In fact, this is the very Hadith that our Imam relies on for his
Qawl Qadim. The fact that this was the legal basis for the Qawl Qadim
indicates that something must be wrong with it to have made the Imam change
his mind on this issue and reject his former opinion.

Indeed, as it turns out, this Hadith has, unfortunately, some defects. Imam
al-Bayhaqi verified that this Hadith is in fact Da'if. Among its problems
is that one of its Tabi'in transmitters, Ibn Ukayma, is unknown. Imam
al-Dhahabi, a later Hadith master of our school, confirms al-Bayhaqi's
judgement and makes it known that narrations from Ibn Ukayma cannot be
used, at least in so far as the school is concerned. Another problem is
that the Athar appearing after the Hadith ("the people stopped
reciting...") is not that of the Sahabi Abu Hurayra, but is that of the
Tabi'i, al-Zuhri (may Allah be pleased with all of them!) [cf. al-Bayhaqi,
Sunan, 2:157-9; and al-Dhahabi, Mizan al-I'tidal, 3:173].

In sum, this Hadith could not be used as a source of primary evidence for
our school, and it could not be used as an argument against the rigorously
authenticated Hadiths that our school relies on as bases for the Qawl Jadid
of our Imam al-Mujtahid and the Qawl Sahih of Imam al-Nawawi and the Qawl
Mu'tamad of the school.

We have briefly surveyed the most credible parts of the evidence used by
those who say that the Fatiha recitation is not absolutely Wajib (and there
is Rahma there in this khilaf among the fuqaha' of our Umma). I think it
would be appropriate here to end with Imam al-Nawawi's judgement concerning
the various Hadith proofs that appear to contradict the position that our
school has taken (and this is only suitable for Shafi'i followers, lest
others might be distracted from their path by this ta'arud al-adilla):

"The solution concerning the [various] Hadiths used by those who advocate
leaving out the recitation [of Fatiha], is that all of these (Hadiths) are
weak [Da'if] and none of them are rigorously authenticated from the Prophet
(may Allah's blessings and peace be upon him!), while some of them [have
the following problems]: Mawquf [attributed to one of the Sahaba] and
Mursal [the transmission stops at one of the Tabi'in], whereas some of
their narrations are either weak or very weak [du'afa']." [al-Nawawi,
Majmu', 3:315].

May Allah shower His mercy unto our Umma in this matter!

I have reached the end of what needs to be said concerning the primary
texts that have to do with this issue. Let us summarise for our readers the
specific rulings on 'amal, that is to say, the fiqhi and furu' rulings,
which should be our concern and the concern of all devotees and 'abids
alike, not the evidence which are our 'ma la-ya'nih':

(1) The minimum hukm, according to our school, is that it is Wajib to
recite the Fatiha behind an Imam in every rak'a, and at all prayers, and
this is the final, practiced, and correct position (to which there can be
no adoptable alternative position for Shafi'is) according to the evidence
and the methods of our school.

(2) The optimal hukm, which is found in our discussion of the Kayfiyya
above, is that the Imam should (that is to say, Mandub and Sunna) pause for
his Ma'mum to finish their Fatiha. If he fails to achieve that peak (or to
fall from one is not a sin and nor will it affect the validity of the
prayer), the Ma'mum can then recite his or her Fatiha when the Imam is
reciting the Sura, or even during the Fatiha of the Imam.

While doing that, we have also answered your question, (question no. 3):
"Is this position of Imam Shafi'i (as mentioned in Al-Umm) a strong
position within the madh[h]ab or is it considered a weak position?" It
should be clear to you now, without any fog of confusion, that the position
of our Imam al-Mujtahid as understood by your Hanafi author is wrong and
that the position which he (also wrongly) quoted and understood to be the
Qawl Jadid, is actually the Qawl Qadim of the school, and one that was
never 'rehabilitated' by later jurists of our illustrious school. (Because
of the shortcomings, you must not take the author seriously, since he is
not a Shafi'i specialist.) This brings us to the second part of our article.

As to the Second Reading:

This part concerns your question, (question no. 1): "Can you highlight or
mention what these twenty-two questions are? [that is to say, the various
Qawl Qadim which later become the Qawl Mu'tamad of our school]."

A word of caution here. The terminologies of our school and the
understanding of its khilaf ['Ilm Rumuz and 'Ilm Istilahat al-Fiqhiyya] are
subjects normally read by students who have reached a certain level in
their study of 'Ilm Fiqh (beginning from the intermediate level
[thanawiyya] to the advanced level ['aliyya], and not for beginners
[ibtida'iyya]; in other words after completing at least the Fath al-Qarib).
For this reason, our answer will be restricted to answering your immediate
question. Detailed technical discussions relating to the contradictory
primary texts of the Qawl Qadim, and their legal bases, will be omitted.

As narrated from the Isnad of al-Rabi' al-Muradi, a trusted companion of
the Mujtahid who transmitted his al-Umm, Imam al-Shafi'i (may Allah be well
pleased with both of them!) said: "I have never debated with someone to win
[for that is idle talk; and he said this as an apology either because his
positions are now different from his teachers or because he changed his
mind on the matter], and I should be pleased if the rest of creation learn
this book and then for none of it to be ascribed to me." And indeed, as
Imam al-Bayhaqi remarked regarding the latter: "What Allah wants is not
what others want!" [Ibn Hajar al-'Asqalani, Tawali al-Ta'sis, 148-9].

It is said that those words were uttered in Egypt when the Imam finished
his al-Umm (since al-Umm contains positions contrary to the Ijtihad of his
earlier teachers, including that of Imam al-Mujtahid al-Malik (may Allah be
well pleased with him!), and also some of his own positions when he was in
Iraq). If it is asked why he changed his opinions, then the standard reply
by Shafi'i teachers would be: he is someone who stands by that which is
correct, as long as he thinks it to be correct, for otherwise he would be
the first to realize it, well before anyone could remind him of it; that is
the reason for the Qawl Qadim and the Qawl Jadid. Indeed, the Prophetic
Sunna is true here: when they are right, they receive two rewards, and when
they are wrong, they still receive one reward.

The definition of Qawl Qadim is: "That which [Imam] al-Shafi'i said in Iraq
or [more accurately] before his move to Egypt." [al-Saqqaf, Fawa'id
Makkiyya, 55]. (For the benefit of students: the Qawl Qadim includes also
the positions which he laid down in writing [Mansus] even after leaving
Iraq, such as during his travel to Egypt (because the Nass was not set in
Egypt); on the other hand, the Qawl Jadid includes those positions which he
laid down in Egypt, even if he did 'say' them in Iraq (because the Nass was
not set in Iraq).)

According to the riwaya of the Amir al-Mu'minin in 'Ilm Hadith, the Shafi'i
Muhaddith Ibn Hajar al-'Asqalani (may Allah be pleased with him!), the
Imam's second visit to Baghdad was in the year 195 H, and he stayed there
for 2 years before returning to Mecca. His third and last visit was in 198,
and he stayed there for a couple of months before he abruptly departed for
and reached Egypt in the year 199. [Ibn Hajar al-'Asqalani, Tawali
al-Ta'sis, 151-2]. This was the period when our Imam was actively writing
his works. In fact it was only in the year 198, when he was 48 years of age
and after a period of Rihla, teaching and study of 40 years that Allah
moved him to start giving out independent Fatwas (that is to say, before
this, he was still depending on the Fatwas of his teachers in Medina, Mecca
and Baghdad; in other words he had then become a Mujtahid Mustaqill [a
separate and independent jurist; this is the highest maqam of Mujtahid out
of the six; notice also how this word originally means 'little' in Arabic,
and how few they were indeed!]).

The following nazam from Tadrib al-Nujaba', versified by one of our jurists
who has recently departed from this world, Shaykh Maysur Sindi al-Tarshidi
(may Allah have mercy on his soul!) reminds us of the various students of
the Imam who transmitted his Qadim and Jadid respectively [Rajaz]:

[When the word 'al-Shafi'i' is used, then who is meant is the Mujtahid
who founded the school, which is so faithfully followed.The Qadim belong to his time in Iraq, the Jadid to his stay in Egypt and they are what remain.The relators of the Qadim are Ahmad bin Hanbal,Dawud of the Zahiris, who moved away,likewise Abu Thawr, who is from Baghdad, and al-Tabari, each one of whom went as far as (the maqam of) Ijtihad,and Ibn al-Sabbah al-Za'farani, and al-Karabisi, the famous Abu 'Ali.The relators of the Jadid include al-Buwayti, I mean Abu Ya'qub in my humble opinion (the Nazim's),and Isma'il al-Muzani, whose study is the splendid Mukhtasar,and Ibn Sulayman al-Rabi'-make his Nisba al-Muradi- is noble and is known to have transmitted a number of the works (of our
Imam);while before him was Ibn Sulayman al-Rabi', who received the Nisba, al-Jizi (may Allah illuminate his virtues!),and Harmala and Yunus the son of 'Abd al-A'la and Ibn Zubayr of Mecca, who have virtue,and also Muhammad, the son of a devotee of Allah, who at the end embraced the Madhhab of Malik,and about whose father, 'Abdullah, scholars say, "he is onewho understands among those who transmit the Maliki school."]

[al-Tarshidi, 'Umdat al-Fudala', 155-6].

Know that every legal discussion in which the Qawl Qadim and Qawl Jadid
concur, is the position taken into consideration by our jurists. If the
fatwas of the Qawl Qadim differ with that of the Qawl Jadid, the former is
unquestionably abandoned (because it is abrogated [Mansukh] by the latter,
and its status according to Imam al-Isnawi is like an opinion outside of
the Madhhab or from another school; al-Kurdi, Fawa'id Madaniyya, 241),
except for a number of them that are re-used, listed below. The verses of
Shaykh al-Tarshidi, remind us again [Rajaz]:

[And refrain also (from giving a Fatwa) from the Qadim,whenever a Hadith does not support it, no opponent maintaining that it does;when what comes from it and what the Jadid has set are different, do not (give a Fatwa), since it is fixed:that is the meaning of their saying, "the Qadimis not the Madhhab of the Enduring Imam."]

[al-Tarshidi, 'Umdat al-Fudala', 37] [*For students: "aydan" can be read
either as a Hal or a Masdar here.]

However, the colleagues and immediate successors of our Imam, including the
Mujtahid al-Tarjih of the school (like the Shaykhan, al-Rafi'i and
al-Nawawi), after detailed and considered assessment, have come to the
conclusion that some of these Qawl Qadim have stronger evidence than their
Qawl Jadid counterparts. These are the Qawl Qadim that became the Qawl
Mu'tamad of the school. Again, the verses of our teacher benefit us [Rajaz]:

wa-bi l-qadImi aftA l-aShAbu ladA # addA jtihAduhu** ilayhi wa-badA

[The jurists have given a Fatwa that favours the Qadim, and by
exercising their Ijtihad towards it, they have made it right.]

[al-Tarshidi, 'Umdat al-Fudala', 37]. [** Fa'ida: the pronoun is read in
the singular because its 'A'id or antecedent, "Ashab", is singular in
meaning; but in English they can only be referred to in the plural!]

Apart from the Qadim-vs-Jadid list, there is also another list of legal
questions in which later jurists disagreed with the positions held by our
Imam (whether Qadim or Jadid), and they number only 13. These changes were
made because the original rulings were considered a great difficulty
[mashaqqa] and more or less 'impractical' or difficult to carry out
[ta'assur al-'amal]. Sayyid Basawdan listed them in his Maqasid al-Saniya,
and among the well known ones are: the ruling that the bride's guardian
[wali] must not be a corrupt person [fasiq] was overturned and later
jurists allowed it [one can see an example of this discussion in Ba 'Alawi,
Bughya, 202-3]; and that it is sufficient for the intention [niyya] that
one makes at the beginning of the Salat to coincide with the Takbirat
al-Ihram as far as reasonably possible [muqarana 'urfiyya] instead of
muqarana haqiqiyya, where it has to exist from the first phrase of "Allahu
Akbar" to the last of it [a summary discussion of this can be found in
al-Hisni, Kifayat al-Akhyar, 103] [the full list by Basawdan is recounted
in al-Saqqaf, Fawa'id Makkiyya, 70].

For those not familiar with the methods of our school, a question may
therefore arise as to how Shafi'iyya followers could follow something not
held by their Mujtahid Imam. The answer for the non-initiated is simple: it
is proof that Ijtihad and minor changes (I like to think of this as
'maintenance') of the school continues well after the death of the Imam
himself. The answer for the initiated is that these are cases when the Nass
[what the Imam has set] contradicts the Madhhab [what the school says]. The
Qadim-vs-Jadid questions is an example of what our scholars call the
al-Mukhtar min haythu al-Dalil [preference on the basis of evidence], while
the 13 questions of Basawdan is an example of al-Mukhtar min haythu
al-Madhhab [preference on the basis of the school]. The changes which
depart from the positions held by their Mujtahid Imam were nevertheless
carried out according to the methods and rules of the istinbat and qiyas as
laid down by the Wadi', and are followed systematically and strictly. This
is why, although the word used to describe "Shafi'i jurists" in our books
is "Ashab", a plural by form, but its meaning is in fact singular, because
as a 'school' or 'body' they all share the same method, aims and concerns,
and maybe likened to a 'family' [as our teacher Shaykh al-Hajini (may Allah
protect him!) eloquently phrased it: lafZuhA jam'un wa-ma'nAhA mufradun;
al-Hajini, Thamra Hajiniyya, 12]. All of this is understood from the famous
anecdote of "al-Shafi'i and the wall" (and as I understand it, some
irresponsible parties have hijacked it and quoted it out of context in
order to suit their own agenda, may Allah protect us from their folly!):

"If the Hadith is authentic, it is my Madhhab [apart from the meaning of
'school' in English, what is meant here is also 'method'"; [idhA SaHHa
l-HadIthu fa-huwa madhhabI]

This authentic saying of our Imam (along with its many other variants, such
as: "if my position agrees with the Prophetic Sunna, then accept it, if
not, throw it to the wall") is found in nearly all of our fiqhi literature,
particularly in those works written by our Mujtahid Tarjih and earlier
jurists. Shafi'i scholars are fully aware that these sayings (known as the
Sigha Tashih al-Shafi'i) refer only to the legal assessments of a disputed
question among our jurists, and the legal discussions of Jadid-vs-Qadim are
among them. (So it is not directed, dear readers, to all of you or the
public!) In fact, the history behind why the Imam uttered these 'Sigha
Tashih' is to defend his abandoning of the Qadim and his establishing the
Jadid upon arriving in Egypt. (If the Imam's justification does not make
sense to you, then imagine that you were the one who asked him the
following question when he arrived in Egypt: "Why did you change your
position from the Qadim to Jadid, O' Imam?") In places where the Qawl Qadim
is made strong, over that of the Qawl Jadid, or in cases when there are
khilaf among our jurists regarding a particular issue, the jurist in
question will without fail quote this saying (one can see Imam al-Nawawi in
action when he performed Tarjih on the controversy over Ma' Mushammas
[water exposed to the sun] with Imam al-Rafi'i; [al-Nawawi, Majmu', 1:136]).

Now it would be appropriate to act on the lessons we have derived from the
first part of our article: to defer to the way the Imam's own students and
representatives understand the Sigha Tashih. Again, I cannot think of
anyone better qualified to understand it than Imam al-Nawawi:

"Its meaning is not that [whenever] anyone considers a Hadith to be
authentic, he can then say, "this is the Madhhab of al-Shafi'i," while
acting [only] on its apparent [meaning]." [al-Nawawi, Majmu', 1:99]. (Very
true indeed, especially against those who do this in the name of "following
the Qur'an and the Sunna".)

A classic explanation of this Sigha Tashih is given by Imam Amin al-Kurdi
(may Allah be pleased with him!):

"Imam al-Shafi'i (may Allah be well pleased with him!) said: "If the Hadith
is authentic, it is my Madhhab, and throw my saying to the wall [i.e.,
idiomatic Arabic to mean 'reject his opinion']." Its meaning is: if you [O'
my colleagues] are uncertain about some ruling and I [al-Shafi'i] am not
absolutely certain about it, while at the same time the Hadith on this
[ruling] according to you is authentic, then, use the Hadith! An example is
the [case] of the time of Maghrib. For uncertainty [i.e., khilaf in our
school] occurred concerning it, whether it lasts till the time of 'Isha' or
not? The Hadith that is authentic according to his companions [i.e.,
Shafi'i jurists] is that it lasts untill the [red] horizon disappears
[which contradicts the Qawl Qadim, namely that Maghrib lasts for a short
time only, that is to say, it lasts long enough for one to prepare for the
prayer and finish a five moderate-length rak'as of prayer (so its never a
good idea to delay your maghrib prayer!)]. Its meaning is not, as some
people of limited insight [ba'd al-qasirin] understand it, that "whenever
any Hadith is authentic, it is my Madhhab." Since, there are many Hadiths
which are authentic but [Imam] al-Shafi'i (may Allah be well pleased with
him!) did not use them, on account of some problems [iqtida'] with them,
such as it is either being specified [Takhsis] or he knew about something
abrogating [Nasikh] [it]." [Amin al-Kurdi, Tanwir al-Qulub, 400]. (The case
above about the time of Maghrib is the eighth Qawl Qadim in our list below
and the meaning of "five moderate-length rak'as of prayer" is explained
there.)

It is the inability of outsiders to understand this, namely that that the
Imam is not the whole sum of the Madhhab, but the Madhhab is the collective
effort of thousands of specialists, is what might have led your Hanafi
author (in the first part above) to be mistaken. The Shafi'i school is of
course, not the only one with this circumstance; other schools too have
their own hermeneutics (and as we have been told by our teachers, theirs is
to an even greater degree of khilaf).

Regarding the number of Qawl Qadim which are re-used, Imam al-Nawawi in his
Rawda says that there are around 20 to 30 of them. [al-Nawawi, Rawda,
9:279]. There is khilaf among our jurists about their precise number, but
the lowest accepted number of Qawl Qadim that later became the Qawl
Mu'tamad is precisely, 19, as established by Imam al-Nawawi in his Majmu'
(and verified by Qadi al-Sulami al-Munawi in his Fara'id al-Fawai'd, and
confirmed later by the Muhaqqiq al-Kurdi in his Fawa'id Madaniyya, and last
reported by Sayyid al-Saqqaf). On the other hand, the riwaya of 22
questions, which you mentioned, comes from the Tuhfat al-Habib of Imam
al-Bujayrimi in his super-commentary to the Iqna' [al-Bujayrmi, Hashiya,
1:77].

Here we will list the 19 re-used Qawl Qadim that our jurists have agreed upon:

1. To do Tathwib [saying, "prayer is better than sleep"] whether in the
first or second adhan [call to prayer] of the Subh; Qadim: Mandub; Jadid:
Makruh.

2. To keep away from impurities in water more than the qullatayn [216
litres]; Qadim: not required; Jadid: required.

3. To recite Suras in the last two rak'as of the prayer; Qadim: Makruh;
Jadid: Mandub.

4. To clean oneself of filth after using the toilet [istinja'] using stones
(or anything that can take the place of stones) for faeces beyond the
bodily outlet but not beyond the inner buttocks; Qadim: sufficient; Jadid:
not sufficient (therefore, need water).

5. Contact between the skin of a man and of a woman when they are each
other's Mahram [unmarriageable kin]; Qadim: does not invalidate the wudu'
[ablution]; Jadid: invalidates it.

6. Running water that comes into contact with impurities; Qadim: does not
become impure, except if the water changes; Jadid: becomes impure, whether
water changes or not.

8. The time of Maghrib; Qadim: lasts until 'Isha' time; Jadid: lasts until
one performs the wudu', cover the awra, make the adhan, and pray five
moderate-length rak'as of prayer (meaning, the Fard and its accompanying
Rawatib, more or less).

9. To intend to follow the jama'a in the middle of the prayer after the
Takbirat al-Ihram of the Ma'mum; Qadim: allowed; Jadid; not allowed.

11. To impose the penalty of Zina [illegal sexual intercourse] on someone
who has had sexual intercourse with his slave-woman who is his Mahram (such
as being a Mahram through breast-feeding); Qadim: Wajib Hadd; Jadid: only
Ta'zir [disciplinary action].

12. To clip the nails of the corpse; Qadim: Makruh; Jadid: Mandub, except
for those who died as a Muhrim [in a state of Ihram during their pilgrimage].

13. The Muhrim has the option of Tahallul [being released from the state of
the Ihram] when sick; Qadim: allowed (but one needs to slaughter in
expiation [dam]); Jadid: not allowed.

14. The consideration of Nisab [minimum value] for Zakat Rikaz [Zakat on
the discovery of pre-'Islamic' treasure]; Qadim: no Nisab; Jadid: include
Nisab.

15. The Ma'mum recites 'Ameen' aloud, when the Imam does that in an audible
prayer; Qadim: Mandub; Jadid: Makruh.

16. If someone dies with unperformed fast-days, the responsible family
member [Wali] can make up the fast on behalf of the dead; Qadim: allowed;
Jadid: not allowed.

17. To draw a line in front of one's place of prayer, if there is no
Sajjada [prayer mat] or barrier [sutra]; Qadim: Mandub; Jadid: not Mandub.

18. When one of the two partners in 'Aqd Sharika [partnership contract]
refuses to spend money on their venture, if they have not specified their
responsibilities; Qadim: the other can override him to provide the capital;
Jadid: one cannot override the other who refuses, but it is sufficient for
the other to pay compensation (by subtracting from the final profits, for
example).

Here, we have achieved what we set out to do. To end this discussion, let
us read together the following verses about these 19 Qawl Qadim from Imam
al-Kurdi's Fawa'id (numbers in square brackets after the verse refer to the
standard order of the 19 Qawl Qadim listed above) [Kamil]:

[The Fatwa questions that favour the Qawl Qadim
by Imam al-Shafi'i the Great are:The flowing stream is not dirty [6], and one may stop distancing oneself [2], and being pure is not nullified by touching the Mahram [5].Perform Istinja' using stones for what has passed beyond the exitup to the two enfoldings, even if it is soiled with blood [4].The time (of Maghrib) extends until the redness at the horizon hasdisappeared [8]. Do the Tathwib for Subh [1], and bring forward the 'Isha' [7]!Do not recite a Sura in the last two rak'as [3]! Following the Imam is allowed after the opening Takbir [9],while to say the 'Ameen' aloud is recommended for the follower [15], and to draw a line in front of the worshiper makes a sign [17].As for the nails, it is disliked to trim them from the dead [12]. The minimum value of the treasure find need not be considered [14].The fast of the Wali for his dead is valid [16], and the option of Tahallul for the Muhrim is allowed [13].Forcing the business partner to build is allowed, as well as to repair anything that is not assigned [18].As to the groom, if the dowry has been placed in his hands, then as to damages, the compensation is fixed [19].The hide after tanning is unlawful to eat [10], and there is punishment for having intercourse with the Mahram slave [11].]

[al-Kurdi, Fawa'id Madaniyya, 249].

May these readings become a means for you to dispel your doubts and
misgivings held by our big family, so that you may now pray behind the Imam
with our brothers and sisters with ease and be removed from the
controversies caused by our cousins!

May this be of benefit! Success is only with Allah, and any mistakes are
mine, so let us then end with the Du'a recited at the end of the Opening:

Rabbi ghfirlI wa-li-wAlidayya! Amin! Amin!

[O Lord, forgive me and both my parents!]

Blessings be upon our Prophet Muhammad, who concealed all idle talk, and is
the guide as we walk, and upon his family and companions, and on the four
Mujtahid Imams, especially our Imam al-Shafi'i, and on the Muqallids of
this Din, and on the practising scholars, and on the jurists and the
Muhaddiths, and on the readers and the expositors of the Qur'an, and on the
true Sufi masters, and on those who follow all of them in good until the
last day.